Joseph Gitau Githongo v Victoria Mwihaki Munya [2014] KECA 366 (KLR)

REPUBLIC OF KENYA

INTHE COURT  OF APPEAL AT NAIROBI

(CORAM: GITHINJI, MUSINGA & M’INOTI, JJ.A)

CIVIL APPEAL NO. 227 OF 2005

BETWEEN

JOSEPH GITAUGITHONGO.................APPELLANT

AND

VICTORIA MWIHAKIMUNYA...........REPONSDENT

(Appeal from the judgmentand  decree of the High Court of Kenya at Nairobi (Mugo, J.) dated 14thJuly 2005

in

H.C.C.C. No. 810 of1992)

************

JUDGMENT OF THE COURT

This appeal arises  from the  judgment of the  High  Court  (Mugo,J.) by which the  learned judge held  on  14th  July,  2005  that the  appellant, JosephGitau Githongo,holds  3  acres  of Land Reference No. NGENDA/KIMUYU/181 (the  suit property)in  trust for the  respondent, Victoria  Mwhihaki  Munya. The  primary  facts of the   appeal  are  not in serious dispute and may  be stated thus:

The  appellant and  the  respondent are  brother and  sister, the  children of  the   late   Githongoof  Ngenda  Location  who   died   in   1940.  The   suit property, which is situate in Kiambu District and  measures approximately 12 acres,  belonged to  the  said  Githongo before being registered in 1958  in the name  of the  appellant as absolute proprietor under the  repealed RegisteredLand   Act,  cap   300.  The  respondent  has  lived  all   her   life  on  the   suit property, save,  according to  her,  for a  period of less  than   one  year,   and according to  the  appellant, of about four years, when   she  lived with one James MunyaRieu (Rieu).

On 14th  February, 1992, the  appellant filed High  Court Civil  Suit No810    of1992seeking, on   the   main,  an   order  for  the   eviction  of  the respondent from the  suit property and  general damages for trespass. His contention was  that he  was  the  registered proprietor of the  suit property; that the  respondent was  married under Kikuyu customary law  to  the  said Rieu  and had  6  children with him;   that she  was  in  occupation of the  suit property temporarily and courtesy of his magnanimity pending reconciliation and  eventual return to her  husband; that she had  refused to  vacate the  suit property upon   request to  do  so  by  the  appellant; and  that under Kikuyu customary law  a  married daughter can  never inherit  the  property of her father.

The respondent filed her  defence and  counterclaim on 4th  March,  1992 in  which she  contended that  the  suit property was  family land;   that the appellant was  registered as proprietor of the  same  in trust for her;  that she had  never been  married to  Rieu;  and  that her  6 children were  not his.  She accordingly prayed for a  declaration that the  3  acres  of the  suit property which she occupies were  registered in the  name  of the  appellant in trust for her  and  an order for subdivision and  registration of the  same  in her name. In the  alternative, she prayed for a declaration that she was the  owner of the  3 acres  by adverse possession.

The  evidence in  the  proceedings before the  High  Court  was  taken byRimita,J. who  however was not able  to write the  judgment. Before Rimita, J.  both  the  appellant and  the  respondent testified, but  called no  witnesses. The task  of writing the  judgement fell on Mugo,J. who,  after considering the evidence   on   record,   dismissed   the    appellant’s  suit   as   well    as   the respondent’s counterclaim  to  the   extent that it was  founded on  adverse possession. However, the court found in favour of the  respondent regarding the   trust and   ordered that  the   suit property be  subdivided  and  3  acres thereof  be   registered  in   the    name    of  the    respondent.  That   decision precipitated the  current appeal.

The appellant’s memorandum of appeal listed some  12 overlapping grounds of appeal. In our view,  the  main  issues  raised in  the  appeal are  3, namely, that the  learned trial judge erred by holding that:

i) the respondentwas not married to Rieu,

ii) the respondentwas  entitled to a  share of  the suit property under Kikuyu customary law;  and

iii) the appellantheld   3  acres   of  the  suit property in trust for the respondent.

With   the  consent of both   parties, the  appeal was  heard by  way  of written  submissions under Rule  100   of  the Court of  Appeal Rules.  Mr Gichuru, learned counsel for the  appellant, submitted that the  learned judge had  erred by  relying on  the  Kikuyu system of naming children to  conclude that the  respondent was not married to Rieu.  In his view,  there was credible evidence that Rieu  had  paid  dowry to  the  appellant who  was  acting as the respondent’s father  for purposes of the  customary marriage and  that the respondent  had  thereafter  cohabited with  Rieu from 1948   to  1952. That period of cohabitation, counsel contended, was  long  enough for the court to presume marriage by  cohabitation on the  authority of the  judgments of the  former Court of Appeal for East Africa in  HORTENSIAH WANJIKU YAWE VSPUBIC TRUSTEE,Civil  Appeal No  13  of  1976and  of the  High  Court  in VIRGINIA  WAIRIMUWANJUIVS  JAMES  MBATIA   WANJUI,  Misc.   Civil Case No 215  of 1979.

Regarding the  trust, learned counsel submitted that from the  evidence, the  suit property belongs exclusively to  the  appellant as his  share  from his deceased father and  that the  other children of the  deceased had  also  been given their shares. Mr  Gichuki criticized the  learned Judge  for holding that the  appellant was  a  “Muramati”  without any  evidence and  for compelling only   the   appellant,  of  all   the   children  of  the   deceased,  to   share   his inheritance with the  respondent. In counsel’s view,  the  respondent became a trespasser  the  moment the  appellant withdrew permission for her  to  be  on the  suit property.

Counsel  concluded by faulting the  finding by the  learned Judge that the respondent was in occupation of 3 acres  of the  suit property as one based  on conjecture rather than  evidence.

For the  respondent, Mr Mureithi, learned counsel, opposed the  appeal as  bereft  of  merit. Counsel   submitted that  the   trial  court had,   on  the evidence before it, properly concluded that the  respondent was  not married to  Rieu  since,  among other things, her  children were  named, in accordance with Kikuyu customary law,  after persons from her  father’s side  rather than that  of her   alleged  husband. It  was   learned  counsel’s  submission  that confronted with conflicting evidence from the  appellant and  the  respondent, the  learned Judge  had  found the  evidence of the  respondent more  credible and  therefore there was  no  proper basis  established by  the  appellant to interfere with the  conclusion of the  learned judge.

Regarding the  right of the  respondent to  inherit from her  father, Mr Mureithi submitted that having held  that the  respondent was  not married, the  learned Judge was right in holding that she could  inherit from her  father under  Kikuyu  customary  law.   In   counsel’s  view,   the   suit property  was registered in the  name  of the  appellant as the  eldest son  in his  capacity as “Muramati” to hold  a share  thereof in trust to the  respondent. The judgement of this  Court  in NJUGUNA VS NJUGUNA(2008) 1  KLR (G&F), 889was relied upon  for the  proposition that under Kikuyu customary law  the  eldest son  inherits land  as a “Muramati”  to  hold  in  trust for himself and  the  other heirs.

Learned counsel concluded his submissions by addressing the  share  of the   suit property that  was awarded  to  the   respondent.  In  his  view,   the respondent’s averment that  she  was  in occupation of 3  acres  of the  suit property was never controverted, either by pleadings or evidence and that in the  circumstances  the  Court was justified in finding the  issue as proved.

This  being a first appeal, we  are  enjoined to  revisit the  evidence that was before the  trial court afresh, analyze it, evaluate it and  come  to  our own independent  conclusion. (See   EPHANTUS MWANGI AND ANOTHER VS DUNCAN MWANGI WAMBUGU [1982-88]1  KAR  278and   SELLE VS. ASSOCIATED MOTOR BOAT COMPANY LTD,(1968)EA   123).The ordinary caution that  we  should  equally  always  bear   in  mind  and   make allowance for  the  fact that the   trial court had  the   benefit of seeing the witnesses, hearing them and  observing their demeanor, is diminished in this appeal because the  hearing took  place  before a different Judge from the  one who   wrote the   judgement.  Nevertheless, we  shall   still bear   in  mind the caution that as an appellate court we have  to be very  slow  in interfering with the  trial judge’s findings unless  it is satisfied that either there was absolutely no evidence to support the  findings or that the trial Judge had misunderstood the  weight and bearing of the  evidence that was adduced and thus arrived at an unsupported conclusion. (See  MUSERA VS MWECHELESI & ANOTHER(2007)2    KLR    159and    JOHN GATIBA BURUNA & ANOTHER VSJACKSON RIOBA BURUNACA No. 89 of 2003).

The  burden is  upon  a party who  wishes  to  rely  on  customary law  to prove the  custom in question. (See  NJOKIVS  MUTHERU (2008)  1  KLR (G&F)  288, ATEMO VS IMUJARO  (2003)  KLR  435),  GITUANJA VSGITUANJA (1983)KLR 575and  KIMANI VS GIKANGA (1965)EA 735).In KAITTANY& ANOTHER  VS WAMAITHA,this  Court stated that “theonusof  proof  to establish a particular customary law  rests on  the party who  relies on that law  in support of his case”. The appellant set out  to prove that the  respondent was married under Kikuyu customary law and that by virtue of that marriage she was not entitled to inherit from her  father. On the  other the  respondent  set out  to  prove in  her  counter claim that the appellant held  the  suit property in trust for her as a “Muramati” under Kikuyu customary law. To succeed, each  party was  obliged to  satisfy the  court on a balance of probabilities in their respective claims.

In our  opinion, the  appellant did  not adduce any  credible evidence of the  alleged marriage between the  respondent and  Rieu.  The only  witness on this  issue  was  the  appellant himself. His  rather sketchy evidence was  that the  respondent was  married to  Rieu  in  1948  and  that he  had  acted as her father and  received dowry from Rieu.  That  dowry comprised 6 goats, Kshs 800/-   and    traditional    liquor.   Following   matrimonial    disharmony,   the respondent  returned  to   her   father’s  home    in   1952   and   the   appellant permitted her to build on and cultivate a portion of the  suit property, pending resolution of her  matrimonial  problems. The  respondent has  lived on  that portion since.  The  appellant also  testified that he  had  not returned Rieu’s dowry, suggesting that the  respondent was still married to him.

The appellant wished the  trial court to conclude from the  above scanty evidence that the  appellant was married to Rieu under Kikuyu customary law and   therefore  excluded from  inheriting  any  property  from  her   deceased father. The  essentials of a  valid Kikuyu customary marriage are now  well settled. In his pioneering work, RESTATEMENT OF AFRICAN LAW: KENYA VOLUME 1 THE LAW ON MARRIAGE AND DIVORCE, Sweet& Maxwell, 1968,Dr Eugene  Cotran states that there can  be  no  valid marriage under Kikuyu  law   unless   a  part  of ruracio  (dowry)  has   been   paid   and   more categorically, that  ““No  marriage  is  valid   under  Kikuyu   law  unless   the Ngurario  ram is slaughtered”.

The   elaborate  procedures  entailed  in   the   Ngurario   ceremony  are described   in    detail   in   JomoKenyatta’s   FACING MOUNT  KENYA, Heinemann  Books, 1988,  Chapter  VII.Those   procedures  were   also considered by  Madan,J.,  as  he  then   was,  in   ZIPPORAH WAIRIMU VSPAUL MUCHEMI, HCCC No  1280 of  1970, where he  concluded that “No Kikuyu  marriage is finally valid  unless  Ngurario  is performed.” The  learned Judge observed that Ngurario  is performed to show  that the  boy  and  the  girl have  been  united and  that Ngurario gives  the  marriage “the final sanction of validity”.  The importance of Ngurario  to  a valid customary Kikuyu marriage has    been     emphasized      in    other      judicial      decisions     including      CASE VSRUGURU (1970)EA 55, IN THE MATTER OF THE ESTATE OF GEOFFREYGITHU KAHORO (DECEASED) HCSC No 2163 of  2011,and  the  decision of this     Court     in    ELIUD MAINA MWANGIV MARGARET WANJIRU GACHANGI,CA No 281(A) of 2003.

The appellant did  not adduce any  evidence regarding the  performance of this  critical ceremony to a valid Kikuyu customary marriage. In  PRISCILLAWARUGURU GATHIGO vs VIRGINIA KANUGU KATHIGO,HCSC No 31  of2001  (Nyeri)which involved a  protest by  a  lady   alleging to  have   been married to  the  deceased under Kikuyu customary law,  Okwengu,J. (as she then  was),  rejected the  claim on the  following basis:

“Having carefully considered the evidence Ifind  that the evidence adduced by the Protester in proof  of her  alleged marriage to the deceased fell  short of proving the alleged marriage. Apart from  her  daughter and  2  brothers there were no  other independent witnesses to the customary formalities.  There was  no  evidence that  there was  any Ngurario  ram   slaughtered  nor  was   there  any   evidence that there were any  elders from  the deceased’s relatives who participated in the alleged formalities.”

In similar terms, in rejecting the  appellant’s contention in this  case that the   respondent  was  married  under  customary  law,   the   learned  Judge expressed herself as follows:

“A   most   elaborateand    well    established   system   of marriage was  in  place  during the time the defendant is said  to have   entered into a  marital union   with one  Mr Munya (Rieu), with the plaintiff acting as the father. The plaintiff has  not adduced evidence to the effect that the various processes necessary for a conclusive marriage contract did  take place. These   would have   involved thevarious  stepsin   signifying  negotiations  between   his family and  that of the groom, betrothal of the parties and actual marriage ceremonies and  formalities. A father is deeply involved in the same, particularly the negotiations stage  and   would  be  in  a  position  to  account in  detail exactly what transpired. The  plaintiff herein only  says  he received dowry the  amount of  which   he  could   not say with certainty and  also  that traditional liquor was  given. In my  considered view  and  in light of what is known of a Kikuyu marriage, a marriage between the defendant and James  Munya  cannot  be  inferred  on  the basis   of  such scanty evidence which  in  any  event is  not corroborated by independent testimony.”

The learned Judge also  found additional support to her  conclusion that the  respondent was  not married to  Rieu  from the  names given  to  the  6 children  of  the    respondent. It  is   common ground  that   under  Kikuyu customary law,  children born  to  a married couple are  named in a particular consistent sequence. Thus,  if the  first born  is a son,  he  will  be  named after the  father of the  husband, or the  mother, if it she is a girl.  The next boy  will be named after the  father of the  wife, and  if she is a girl,  after the  mother of the  wife. The  naming of the  children keeps  alternating  between persons in the  two  families.

In this  case,  the  evidence before the  trial court was  that save  for the second daughter, Regina Njeri,  who  was  named after Rieu’s  mother; all  the other children were  named after people from the  side  of the  respondent’s father, including the  appellant himself. The  respondent explained that Njeri was named after Rieu’s  mother during the  short duration she lived with him, hoping that the  relationship would develop into  a marriage. The learned trial Judge   accepted  the  explanation,  which  we   do   not  find  any   basis   for disagreeing with. The  learned Judge  also found that the  6  children of the respondent could  not possibly have  been  born  between 1948 and 1952, the period which the  appellant alleges the  respondent was  married to  Rieu.  She concluded, which  in  our   view   cannot  be   faulted,  that  the   respondent’s children were  born  out  of wedlock.

In light of the  particular facts of this  appeal, the  learned Judge cannot be  faulted for finding that the  respondent was  not married to  Rieu  under Kikuyu customary law,  or  at all  and  we therefore uphold her  finding in  that regard.

Having failed to  prove that the  respondent was  married to  Rieu,  the appellant faults the  trial court for failing to presume a marriage between the respondent and  Rieu  based  on  cohabitation. It has  been  accepted in  Kenya over  a long  time that cohabitation of a man  and  a woman for a considerable period  of  time  in   circumstances  where  the   community  treats  them  as husband and  wife, can  give  rise  to  the  presumption of marriage. In HOTENSIAH WANJIKU YAWE VS PUBLIC TRUSTEE(supra),it was  held  that  long   cohabitation  as  man   and   wife  gives  rise   to  a  presumption  of marriage and that only  cogent evidence to the  contrary can rebut such a presumption. The  Court  further stated that  the   presumption  of  marriage arising from long cohabitation applies even  under customary law.  The same point  was   emphasized  by   this  Court   in   MARY WANJIRU GITHATU VSESTHER WANJIRU KIARIE, CA No 20  of 2009 (Eldoret)where Bosire,  JAstated that:

“in  circumstances where parties do  not lack  capacity to marry, a marriage may  be presumed if the facts  and circumstances show  the parties by  along  cohabitation or other   circumstances   evinced   an    intention   of    living together as husband and  wife.”

The  rationale behind the  presumption of marriage was  succinctly explained by the  Court as follows:

It (presumptionof  marriage) is  a  concept born  from   an appreciation of  the needs of  the realities of  life  when  a man  and  woman cohabit for  a  long  period without solemnizing their  union   by  going   through  a  recognized form  of marriage, then a presumption of marriage arises. If the woman is left stranded either by  being cast away by the “husband’’, or because he dies, occurrences which do   happen,  the  law    subject  to  the   requisite  proof, bestows the status of  “wife’’ upon  the woman to enable her  to qualify for  maintenance or a share in the estate of her  deceased “husband”.

Consequently the  presumption of marriage has  been  applied in  this country in  the   following cases,   among  many  others;  PETER HINGA VSMARY WANJIKU,CA  No  94   of  1977, MARY WANJIRU GITHATU VSESTHER WANJIRU KIARIE(supra),andIN THE MATTER OF THE ESTATEOFGEOFFREYGITHUKAHORO-DECEASED,HCSC No 2163 of 2011.

Once  more, there was  no  credible evidence adduced by  the  appellant to prove cohabitation of the  respondent and Rieu so as to enable the  court to presume a marriage between the  two.  The respondent was adamant that she had  lived with Rieu  for less  than  one  year  while  the  appellant claimed that she had  cohabited with him  from 1948  to 1952. Even  if the  assertion by the appellant is accepted, the  fact is that from 1952  to 2002  when  Rieu died,  the parties had  not lived together. It is certainly odd  to ask the  court to presume a marriage in respect of people who  had  not cohabited as husband and  wife for a period of 50 years. If this  woefully inadequate evidence of cohabitation is taken into  account together with the  finding of the  learned judge that the children of the  respondent were  born  out  of wedlock, there would be no basis to presume a marriage between the  respondent and Rieu.

On the  question whether the  appellant was  registered as proprietor of the  suit property in trust for the  respondent, the  following facts stand out.  It is not in dispute that before registration in the appellant’s name  in 1958, the suit property belonged to  Githongo, the  father of the  parties in  this appeal. When  Githongo died  in 1940  the  respondent was living on the  suit premises and  she was still living on  it in  1958   when   appellant was  registered as proprietor. She continues to live there today.

The registration of the  appellant as proprietor under the  repealed RegisteredLand  Act, cap  300constituted him  an absolute proprietor and conferred on him  all  rights, privileges and appurtenances thereto, free from all  other interests and  claims, which rights, privileges and appurtenances were  not liable to  be  defeated except as provided in  the  Act  (section28).However, the  proviso to  that section provided that registration as proprietor under the  Act  did not relieve the  proprietor from any  duty or  obligation to which he is subject as a trustee.

In   KANYI VS. MUTHIORA, (1984)KLR,712this   Court  held   that registration of land  in the  name  of a proprietor under the  Registered Land Act did  not  extinguish  rights  under Kikuyu customary law  and  neither did  it relieve the   proprietor  of his  duties or  obligations  as  trustee.  The  Court further held  that the  trustee referred to  in  section28of the  Act  included a trustee under customary law.  (See also  MUKANGU V MBUI,CA No 281  of 2000).

One  of the  issues  raised in  KANYI VS MUTHIORA (supra),  was  the right  of  unmarried daughters to   inherit  from  their  fathers  under Kikuyu customary  law.   Chesoni,JA.,   as  he then   was,   speaking for  this   Court expressed the  position as follows:

“Itis settled  Kikuyu customary law  that the estate of  a deceased  intestate   polygamous  man   is  inherited according to  the  houses. Each  house   gets  equal share and  a house  is constituted by  each  wife. The  children of each   house   then share their portion equally. It  is  true among  the  Kikuyu  land    is   inherited  by   sons   to  the exclusion of married daughters, but as the learned judge correctly held unmarried daughters are entitled to inherit land, save that if they have no child their share is for life, but if they have an illegitimate child then that child  inherits their share. In the latter case the unmarried daughter acquires an absolute and not a life interest.”(Emphasis added).

From  the  above principles and  the  facts of this  appeal, we  find that there was no bar to the respondent inheriting land  from her father.

The  office  or  concept  of  “Muramati”  under  Kikuyu  customary  law,particularly his  duties, responsibilities and  obligations, was  considered by this  court in  NJUGUNA VS. NJUGUNA, (2008)1 KLR 889. The Court held, inter  alia, that the  eldest son inherits land  as a “Muramati” to hold  it in trust for himself and  the  other heirs; that the  “Muramati” has a duty to  distribute the shares  to  the  heirs  in accordance with the  wishes  of the  deceased or in accordance with  the  rules   of  intestacy;  and   that  the   “Muramati”  is  not entitled to any  remuneration for his services because his duty is a moral obligation. In this  appeal, the  appellant and the  respondent were  from one of the  houses  of Githongo. One of their sisters was long  dead  and the  other was married, leaving the  appellant and  the  respondent as the  beneficiaries from that house.  The appellant was  the  first born  son  from their house.  In these circumstances, we are satisfied that the  learned Judge did  not err  by holding that the  appellant was  a “Muramati” who  held  the  suit property in  trust for the  respondent. In light of the  applicable rules  of intestacy under Kikuyu customary law,  the  appellant was obliged to distribute to the  respondent her share,  which we take to be the  portion of the  suit property that she has been in occupation of.  Ultimately therefore, we find that upon  registration of the appellant as the  proprietor of the  suit property, he held  the portion of the  suit property occupied by the  respondent in trust for her.

We do not find any  substance in the  complaint that the  respondent did not prove that she occupied 3 acres  of the  suit property. In her counter claim, that is what she pleaded to  be the  area  of the portion that she had  claimed and  in respect of which she had  sought a declaration. The appellant did  not controvert the  respondent’s averment; in fact he did  not file any  answer and defence to her  counterclaim, and  even  if issues  had  been  joined, he  never led any evidence to controvert the  respondent’s claim to 3 acres.

We have  come  to the  conclusion that this  appeal has no merit and  the same  is hereby dismissed with costs  to the  respondent.

Datedand  delivered at Nairobi this 3rdday  of October, 2014.

E. M. GITHINJI

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JUDGE OF APPEAL

D. K.MUSINGA

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JUDGE OF APPEAL

K.M’INOTI

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JUDGE OF APPEAL

I certify that this  is a true copy  of the  original.

DEPUTY REGISTRAR